Singh v Data Palette Info. Servs., LLC
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 21, 2013
Friedman, J.P., Sweeny, Renwick, Freedman, Roman, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about October 26, 2011, which denied plaintiffs' motion for summary judgment, unanimously affirmed, with costs.
Plaintiffs failed to establish their entitlement to judgment as a matter of law by showing that they either performed under the contract or were excused from doing so (see Harris v Seward Park Hous. Corp., 79 AD3d 425 [1st Dept 2010]). Moreover, the record presents triable issues of fact as to whether defendant breached the Operating Agreement (see Boston Concessions Group v Criterion Ctr. Corp., 200 AD2d 543 [1st Dept 1994]).
We have considered plaintiffs' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 21, 2013
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